


A Mini History Lesson (6)

by pallasite



Series: Behind the Gloves [118]
Category: Babylon 5, Babylon 5 & Related Fandoms
Genre: Backstory, Bigotry & Prejudice, Canon Compliant, Constitutional law, Discrimination, Essays, Fix-It, Gen, Historical, Law, Psi Corps, Telepath Law (Babylon 5), Worldbuilding, double standards, telepaths
Language: English
Status: Completed
Published: 2018-05-16
Updated: 2018-05-16
Packaged: 2019-05-07 19:14:21
Rating: General Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 1,714
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/14677659
Author URL: https://archiveofourown.org/users/pallasite/pseuds/pallasite
Summary: Part 6 of the "mini history lesson" series.What the heck is "due process"? What's that have to do with telepaths?The prologue ofBehind the Glovesishere- please read!





	A Mini History Lesson (6)

**Author's Note:**

> What is this series? Where are the acknowledgements, table of contents and universe timelines? See [here](http://archiveofourown.org/works/10184558/chapters/22620590).
> 
> If you like _Behind the Gloves_ and would like to send me an email, I can be reached at counterintuitive at protonmail dot com. Do you have questions? Would you like to tell me what you like about this project? Email me!
> 
> I also have an [ask blog](https://behind-the-gloves.tumblr.com/), a [writing blog](https://www.tumblr.com/blog/pallasite-writes), and a "P3 life" Tumblr [here](https://www.tumblr.com/blog/p3-life) with funny anecdotes. :)

Part 1 is [here](http://archiveofourown.org/works/10292036). (Normals took away "every right telepaths had," not the Corps. They created a caste system and put telepaths on the bottom, threatening telepaths with annihilation if they didn't agree to stay there.)

Part 2 is [here](http://archiveofourown.org/works/10336598). (Privacy law 101 - how all this mess started in 1928 with Justice Brandeis' dissent in _Olmstead_.)

Part 3 is [here](http://archiveofourown.org/works/10467444). (Privacy law 101 - how Justice Brandeis' dissent from 1928 became US law in 1967, in _Katz_.)

Part 4 is [here](http://archiveofourown.org/works/10478532). (In Earth Alliance tort law, a telepath's mere _presence_ , even in the absence of any tortious conduct or demonstrable damages, can nonetheless constitute a tort.)

Part 5 is [here](https://archiveofourown.org/works/10491045). (Normals view telepathy as analogous to "rape" (among other crimes), and the law reflects this attitude, and criminalizes _awareness_. Telepaths, meanwhile, remain the real victims of actual sexual assault and trafficking at the hands of normals.)

**It's been over ten years since I took Con Law, so if I've messed something up, please let me know. I want to make this as clear and accurate as possible, as I try to reconstruct what happened. Thanks!**

\-----

As I put it at the end of Part 3:

_The Court was not, however, finished in its rewriting of the Fourth (and Fifth) Amendments. Rather, in the years following Katz, the newly minted “right to privacy,” created from Justice Brandeis’ “penumbras” of the Fourth Amendment, only expanded in scope, quickly forming the basis for policy even in seemingly unrelated areas such as abortion (Roe v. Wade (1973)). The horse was out of the barn._

_As relevant to telepath law, the “right to privacy” ballooned again in the early 2100s, during the “telepath scare.” Cases affirmed the constitutionality of the Crawford-Tokash Act requiring telepath registration, and granted normals the right to be free from the presence of “unmarked” telepaths in all public places, and hence from real and potential violations of their privacy. New torts were created to punish those (typically businesses) who had willfully or negligently exposed others to the presence of unmarked telepaths._

_Subsequent cases also affirmed the prohibition of telepaths from certain professions, and the right of normals to discriminate in others, as in housing and some public accommodations. In these cases as in others, telepaths' rights to equal protection under the law were abolished in the name of protecting the privacy of normals with whom they might interact._

The Earth Alliance Constitution was based substantially on the US Constitution, and so certain provisions were copied over. Of relevance here is the 5th Amendment protection against self-incrimination, the 5th Amendment due process clause, and the 14th Amendment due process clause.

I'm going to break this down for you, because this is really confusing.

*****

### Amendment V

**No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.**

*****

Relevant section #1: No person ... shall be compelled in any criminal case to be a witness against himself" - the right against self-incrimination.

Relevant section #2: No person shall ... be deprived of life, liberty, or property, without due process of law" - the Fifth Amendment due process clause.

These are two _separate provisions_ , with separate legal history, that both happen to be located in the same Amendment to the US Constitution (not the Earth Alliance Constitution, where they could be in separate places!). "Due Process" is also referred to in the 14th Amendment.

*****

### Amendment XIV (Section 1)

**All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.**

*****

What does "due process" mean? See Wikipedia [here](https://en.wikipedia.org/wiki/Due_Process_Clause).

The phrase, in the procedural sense, refers to what _process_ is _due_ according to law. (For example, if the state wants to lock you up in prison for a crime, and thus deprive you of liberty, it must follow  _process_ and give you the right to a trial, etc.). In the substantive sense, "due process" refers to several other things, including both the rights of "discrete and insular minorities," as well as, in recent years, the right to privacy in matters of family, marriage, motherhood, procreation, consensual sexual activity among adults (LGBT), child-rearing, etc. (See [here](https://www.livescience.com/37398-right-to-privacy.html) for more on the Due Process clause of the Fourteenth Amendment.)

So, to try to make a complex subject simplified:

  * "Privacy" is never explicitly mentioned in the Constitution - it's interpreted into the document
  * There is a so-called "privacy" right in the _explicit right_ against self-incrimination in the Fifth Amendment vis-a-vis in criminal cases ("plead the fifth")
  * There is a separate so-called "privacy" right interpreted into the Fifth and Fourteenth Amendment "due process" clauses (as a "liberty" right to be free from excessive government intervention in people's lives)



JMS, however, seems to have got this nuance mixed up, and repeatedly refers to the right against self-incrimination (for normals - telepaths don't have it) as "due process." He mentions this in one way or another, including the concurrent rules of evidence that exclude telepath testimony, at least **twenty times** in canon.

He seems to clearly mean the right against self-incrimination and not something else, since "the right not to be scanned" and the evidentiary rules that keep the testimony of telepaths out of court are not substantive due process cases of "excessive government intrusion" into people's lives (e.g. the state banning same-sex relations, or the state banning all abortion) - what he really means is that normals, guilty or innocent, have a right not to have telepaths involved in the process that determines guilt or innocence. (And he wrote a post on Usenet about this, which I'll get to later.)

It's really about self-incrimination. Though he calls it "due process."

So just keep that in mind.

There is an EXTREME irony here. In the present-day United States, the 14th Amendment, Section 1, includes both "due process" rights and "equal protection of the laws." This Amendment was written shortly after the Civil War. It protects the rights "discrete, insular minorities" (often racial). Laws are subjected to heightened scrutiny by courts when they affect groups that fall under a "[suspect classification](https://en.wikipedia.org/wiki/Suspect_classification)": namely groups that possess an _immutable characteristic_ for which they have historically been _discriminated against and subjected to prejudice, hostility or stigma_ , and who are _powerless to protect themselves via the political process_.

  * Telepaths meet all of these criteria.



Given the [history](https://archiveofourown.org/works/10292036) by which the Earth Alliance has created a separate legal ( _de jure_ ) caste for telepaths, mandating that they be registered with the government and forced to dress differently to keep them apart, how could they not be a "discrete, insular minority"? How could any of this have happened unless the 14th Amendment Due Process/Equal Protection clause had been abolished in the United States (or was never applied to telepaths), and unless it had never existed in the Earth Alliance?

I can only assume that a condition for a nation's membership in the Earth Alliance is that the country must have agreed to let Earth Alliance law trump local law when there was a conflict. EA law has no Equal Protection clause in the same way, and so the 14th Amendment of the US Constitution, at least with respect to telepaths, was tossed into the dustbin.

No more Equal Protection for this one group. (Yes, Garibaldi, you "took away every right they had." And you never gave it back.)

  * Telepaths have no right against self-incrimination (they can be scanned by law enforcement, or by order of the director, at any time and for any reason, or no reason at all)
  * Telepaths have no procedural due process rights (if they're arrested, they have no right to a trial or a lawyer - they'll just be scanned, and the Corps can do whatever it wants with them)
  * Telepaths can be deprived of life, liberty or property if the director orders it (the director can order any telepath killed if he feels like it)
  * Telepaths have no substantive due process rights or equal protection rights (there are numerous laws on the books that treat telepaths differently from normals, banning them from most jobs, forcing them to dress differently, and so on)
  * Telepaths have very limited political rights (they may vote, but they may not elect their own leadership in the Corps, they may not serve on a jury, and they may not run for or hold political office)



And ALL OF THIS has come about supposedly to protect the "privacy" and "due process" rights of _normals_.

So-called "privacy rights," _never enumerated_ in the US Constitution, and interpreted into the Constitution by various justices over the years, somehow grew and grew and  _grew_ until they gobbled up the 14th Amendment for lunch. They grew so big that telepaths were legally reclassified from people to "devices."

No more were all "discrete, insular minorities" protected by the courts from unequal treatment by the prejudiced majority, and through them by the state - the reverse occurred for one group, with the entire legal system (criminal and civil) structured to protect normals, and the state itself, _from_ telepaths.

**Way back in 1928, Justice Brandeis expressed fear that via "advances in the psychic sciences," the government would some day be able to squish the rights of the little guy. He wanted to protect people from government. But the reverse happened - the government took Justice Brandeis' "privacy" rationale and used it to become that very monster, abolishing the rights of telepaths (and only telepaths) _simply because they were telepaths_.**


End file.
